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By Kaitlin Mara Intellectual property is a useful leveraging tool for developing countries eager to see the creation of a global access and benefit-sharing regime on genetic resource use, said a recent panel on biodiversity protections in international law.

“Benefit-sharing was viewed as an integral part of the main bargain between developed and developing countries” when the Convention on Biological Diversity (CBD) was first formed, said Timothy Hodges, a Canadian official who co-chairs an access and benefit-sharing working group under the CBD.

“But there’s been frustration on the lack of implementation,” he added, until a recent turn in negotiation at the latest top-level CBD meeting in Bonn (IPW, Biodiversity/Traditional Knowledge, 30 May 2008) where significant progress was made in setting out a path for the eventual implementation of an access and benefit-sharing (ABS) regime. It is “clear for many,” he added later, that IP is a tool that could be used on further ABS negotiation, though there are limits to its effectiveness and care must be taken.

Hodges was speaking at a 9 July event hosted by the Institute for Policy Innovation, a Texas-based think tank, intended to coincide with intensifying negotiations at the World Trade Organization in the lead-up to its high-level ministerial meeting starting 21 July. The panel discussed the relationship of the CBD, an international covenant to ensure the sustainable and equitable use of biological diversity, to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

A majority of WTO member states, mainly from developing countries, support an amendment to TRIPS that would ensure compliance with the CBD by codifying biodiversity and traditional knowledge protection into patent law. A number of developed nations eager to see other intellectual property issues on the WTO negotiating table have shown willingness to allow negotiation on the CBD issue. In general, an agreement in the WTO would be viewed as having greater enforceability than a UN agreement.

CBD/TRIPS Conflict; Role Of WIPO

The conflict, explained Jayashree Watal, counsellor in the WTO Intellectual Property Division, was originally that the CBD gives nations sovereignty over their own genetic resources, whereas the TRIPS agreement allows for the patenting of genetic resources and requires the honouring of legitimate patents on micro-organisms. Now, she said, the focus is on “making the two mutually supportive.”

Everyone, said Watal, recognises that “erroneous patents are a concern” and most appear to hold the view that national regimes on ABS should be supported. The disagreement is in the way to handle these issues.

Four opinions are currently on the table, she explained: first, that CBD compliance should be done at a national level, with no necessity of amending international rules; second, that it is unclear how to proceed without more information and fact-based discussion (Canada has been a chief proponent of this, among others); third, that there is an inherent conflict between TRIPS and CBD and that it must be remedied (a developing country idea at first, though Switzerland, Europe, and Norway have later supported the idea, to differing degrees); and fourth, that living organisms should not be patented (an opinion held mainly by members of the Africa group).

In particular, proponents of the third idea have proposed amending TRIPS to include a mandate to disclose the origin of genetic resources used in patent applications. With somewhat less support, they also propose adding a mandate to ensure the prior informed consent of communities from which genetic resources are taken. Both are seen as ways to ensure equitable and sustainable use of biodiversity.

But Antony Taubman, acting director of the Global Intellectual Property Issues Division at the World Intellectual Property Organization pointed out that “access and benefit-sharing is broader than IP as such.” There is a limited role for WIPO in this area, as there is a limited role of IP in this area, he added.

And normally, said Taubman, IP is conceived of in a negative sense with regard to ABS. That is, it should be used to stop misappropriation, or to prevent or remedy illegitimate or unethical patents. A lot is known about “what the relationship should not look like,” he said.

What is more interesting is to think of ideals, he continued: whether an ABS regime could be conceived as a partnership between genetic resource providers and users. The role of WIPO here would be in making sure parties are informed and empowered to decide what constitutes an effective partnership. As a part of informing parties, WIPO might raise questions about practical concerns in ABS implementation – such as who will pay – or about the nature an ABS regime might take.

For example, Taubman said, there should be a way to avoid “just cashing out” for ABS, i.e. conceiving of benefit-sharing as a solely financial exchange. Non-financial forms of benefit sharing, such as involving traditional healers in clinical trials as scientific peers, might be more sustainable and more equitable, he added. It is important to ask what “the custodians [of genetic resources] wish to get out of” the ABS arrangement. Then, the role of intellectual property becomes about “leveraging outcomes” in a way acceptable to both parties.

Trading Access For Benefits, And Practical Implementation

An ABS regime was considered a key trade-off in the CBD, said Hodges: Developed countries wanted access to genetic resources, and developing countries wanted access to goods derived from them or other benefits.

In part, continued Hodges, the slow progress of the ABS regime’s creation in the early years of the CBD was due to the complexity of creating it. But in part it was due to intransigence on behalf of some parties. Now the process is gathering momentum, but it is doing so as “one train on parallel tracks” with work happening in other institutions such as WIPO and the WTO. The way the interactions will play out is hard to see.

What has been agreed to so far in the CBD, a Brazil official said from the audience, is a “process roadmap,” and the content of the regime is still to be agreed upon. “Meetings alone,” he added, “do not ensure an outcome.”

There are several challenges ahead, said Hodges, including defining substantively what access, benefit-sharing, and capacity building will mean practically, and including involving stakeholders like industry and indigenous people as key aspects of solution finding and implementation.

Susan Finston of the industry-oriented Access and Benefit Sharing Alliance cautioned the panel that the CBD has already spent years working on defining the exact meaning of “genetic resources,” “traditional knowledge,” and other terms, and raised concern over how the same level of technical specificity in the TRIPS amendment could come about in the much shorter time before the ministerial meeting, suggesting more time might be needed.

Watal said that she had heard this argument in the WTO, but that one member had responded that no definition on micro-organisms existed when TRIPS was first negotiated, yet developing countries who asked for it were told it was an “understood” concept and the agreement went through.